That is a good question, because it highlights the importance of ensuring that people in Wales understand where law is made. The percentage of Welsh law is currently tiny in comparison with the overall impact of the law on those people, but I think we should keep an eye on the position.
Clause 1 sets the scene for the new model of Welsh devolution that is presented in the Bill. It inserts a new part 2A into the Government of Wales Act, ensuring that, for the first time, the permanence of the National Assembly for Wales and the Welsh Government is confirmed. It recognises both as a permanent element of the United Kingdom’s constitutional arrangements, and as part and parcel of our nation’s constitutional fabric, and reflects the importance of the National Assembly and the Welsh Government to political life in Wales.
The Silk commission recommended that it be recognised that the National Assembly for Wales is permanent for as long as that is the will of the majority of people in Wales. In the St David’s day agreement, the Government gave an undertaking to enshrine that commitment in legislation, which we are delivering in clause 1; we did the same for the Scottish Parliament and the Scottish Government in the Scotland Act 2016. I think it fair to say that most Members welcome that certainty.
New section 92A also provides that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision by the people of Wales voting in a referendum. I hope that such a referendum will not be forthcoming, but I think it important to recognise that the decision on whether we have a Welsh Assembly and a Welsh Government is a decision for the people of Wales, to be made by them.
New section 92B underpins the commitment to permanence by recognising that there is a body of Welsh law made by the Assembly and Welsh Ministers that forms part of the law of England and Wales. It is important that we recognise that in statute—which we are doing for the first time—while also recognising the elements that are common to England and Wales. Clause 1 is a declaratory statement, but its recognition of the contribution made by the Assembly and Welsh Ministers to the law of England and Wales is important none the less. Meanwhile, the Justice in Wales working group of officials that I mentioned earlier will consider what changes are necessary to reflect the distinctiveness of Wales within the administrative arrangements for justice, and, as I have said, I expect a report in the autumn.
Amendment 23, tabled by the hon. Member for Dwyfor Meirionnydd, seeks to broaden the scope of the commitment given in relation to the convention about Parliament’s legislating on devolved matters by removing the word “normally”. The commitment in clause 2 that Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly reflects the current convention on legislative consent. We gave a commitment to put that convention on a statutory footing in the St David’s day agreement, and that is what clause 2 does. The clause is also in line with the provision made in relation to the Scottish Parliament in the Scotland Act 2016. Since the convention was established, a legislative consent motion has always been sought before Parliament has passed legislation for Wales in relation to devolved matters. This is part of the normal working arrangements between the UK Government and the Welsh Government and we expect it to continue, but to remove “normally” from the clause would fundamentally change the convention. The “not normally” element of both the convention and clause is essential as it acknowledges parliamentary sovereignty and, within the clause, signals to the courts that this clause is not intended to be subject to adjudication.
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Clause 2 implements a Silk commission recommendation and a St David’s day commitment. The Government have no plans to broaden that commitment.
Amendment 3 from the hon. Member for Ceredigion (Mr Williams), amendment 24 from the hon. Member for Dwyfor Meirionnydd, amendment 4 from the hon. Member for Ceredigion and amendment 25 from the hon. Member for Dwyfor Meirionnydd seek to define the conditions Parliament would have to satisfy to legislate without the consent of the Assembly. Amendment 24 would provide for an exception to the convention on legislative competence by setting out the circumstances in which Parliament could legislate with regard to devolved matters without the consent of the Assembly.
The convention deliberately does not define those circumstances. Parliament is sovereign, so both the Assembly and Parliament can legislate for devolved matters. Defining the instances in which Parliament can legislate for devolved areas would drive a coach and horses through this underpinning principle of devolution. We are talking about a measure that is devolving power, so that principle is important and needs to be retained.
There are occasions when it makes sense for Parliament to legislate in relation to matters devolved to the Assembly, and since the convention was established a legislative
consent motion has always been sought before Parliament passes legislation for Wales in relation to devolved matters.
Amendments 3 and 4 seek to define the term “devolved matters” more specifically and more broadly than the current convention. That would, for example, also include Executive functions of Welsh Ministers, some of which are conferred in relation to reserved matters, so it could be problematic for those amendments to be supported. Under the current convention the UK Government will seek the Assembly’s consent when Parliament legislates on matters within the legislative competence of the Assembly. If parliamentary legislation seeks to amend a function of Welsh Ministers that is outside the legislative competence of the Assembly, the UK Government normally need only seek the consent of Welsh Ministers. The Silk commission made no recommendation to extend the convention in this regard. In view of the fact that the hon. Member for Ceredigion described the Silk commission as his Bible, I think he should take note of that point.
Assembly Standing Orders already require Welsh Ministers to notify the Assembly in a written statement about provisions in parliamentary Bills that have a significant impact on Welsh Ministers’ functions. It is right that this is a matter for the Assembly and Welsh Ministers, and I see no reason to change the convention clause 2 enshrines.
In the St David’s day agreement we committed to placing the convention on legislative consent on a statutory footing in the same manner as we have done for the Sewel convention in the Scotland Act 2016. Clause 2 inserts section 107(6) into the Government of Wales Act 2006 to reflect in statute the political understanding that already exists. The practice of obtaining the consent of the Assembly is well-established: a legislative consent motion is always sought before Parliament passes legislation for Wales that we consider is within the Assembly’s legislative competence. This has long been part of the normal working arrangements between the UK and Welsh Government and I fully expect this to continue. We will of course be issuing updated guidance to UK Government Departments to reflect the reserved powers model well before the new model is implemented.
One of the key aims underpinning the Wales Bill is to deliver much-needed clarity to the Welsh devolution settlement. The provisions in clause 4 are important in delivering that aim. The clause helps to draw a clear devolution boundary between what is reserved and what is devolved by defining clearly which public authorities are devolved and accountable to the Assembly and Welsh Ministers. Clause 4(1) inserts new section 157A into the Government of Wales Act 2006 to introduce devolved public authorities as “Wales public authorities”. All other public authorities are reserved authorities.
New section 157A(1) explains that Wales public authorities are those that meet conditions in new section 157A or those listed in new schedule 9A to the 2006 Act, inserted by schedule 4 to the Bill. The first condition in new section 157A(2) limits Wales public authorities to those bodies exercising functions only in relation to Wales. But there needs to be some flexibility in this rule because the Assembly can legislate in an ancillary way in relation to England, and can impose functions on devolved bodies in relation to England.
Subsection (3) makes it clear that such functions should be ignored in categorising a body as a Wales public authority. This flexibility ensures that devolved
bodies—for instance, Natural Resources Wales—and regulation and inspection bodies for some devolved services can exercise some functions in England and still be Wales public authorities.
The second condition requires Wales public authorities to exercise functions that are not wholly or mainly reserved functions. Again this provides flexibility to ensure that devolved bodies with some reserved functions, like local authorities in Wales, can be Wales public authorities.
New section 157A(5) provides an order-making power to modify the list of Wales public authorities in new schedule 9A. An order is subject to scrutiny by both Houses of Parliament and the Assembly—which I think is a pretty good safeguard.
Clause 4 provides a clear separation between devolved and reserved bodies by defining the former as Wales public authorities and listing those authorities on the face of the Bill. It meets a key recommendation in the Welsh Affairs Committee’s pre-legislative scrutiny report.
Amendments 26 and 27 seek to expand the list of Wales public authorities in schedule 4 to the Bill to include the National Assembly for Wales Commissioner for Standards and the National Assembly for Wales Remuneration Board. The standards commissioner does important work as an independent authority appointed by the Assembly to safeguard standards and to address the public’s concerns. The Remuneration Board does similarly important work in ensuring that Assembly Members have the right resources to do their jobs properly. The provisions in clause 4, along with schedule 4, are intended clearly to define which public authorities are devolved and therefore which are reserved.
I understand that the Assembly’s Presiding Officer would like both these bodies included in the list of Wales public authorities for reasons of clarity. I would like to take some time to consider the categorisation of both bodies further and return to this matter on Report. That is not a rejection of the amendments, but we do need more time to consider the impact on the definition we have created in this measure. I hope that, in the spirit of that comment, the hon. Member for Dwyfor Meirionnydd will withdraw those amendments.
One of the Government’s key aims for this Bill is to deliver much needed clarity to the Welsh devolution settlement. Schedule 4 is important in delivering this aim, listing Wales public authorities to provide absolute clarity about those authorities that are accountable to the Assembly and Welsh Ministers. The Welsh Affairs Committee highlighted this as being needed in defining public authorities in this Bill, and I hope this revised Bill has delivered that clarity.
As the Government set out in our response to the Committee, we fully accept its conclusion that a list of reserved authorities would be long, and so the Bill includes a list of Wales public authorities that is far shorter and much easier to use, and which provides the clarity that was requested.
I therefore propose that clauses 1 to 4 and schedule 4 stand part of the Bill, and urge Opposition Members to withdraw their amendments.